Peter Farbar [2019] EWCA Crim 1716

**R v Peter Farbar [2019] EWCA Crim 1716** concerned an appeal by Mr Farbar against conviction for failure to surrender to custody and against sentence for two offences of causing grievous bodily harm with intent, heard before Lord Justice Haddon-Cave, Mrs Justice Cockerill and His Honour Judge Bate sitting as a judge of the Court of Appeal Criminal Division. The court quashed the conviction and sentence for the bail offence on the ground that it offended the rule of specialty, directed that 68 days spent in custody pending extradition be credited against sentence, but refused an application to adduce fresh psychiatric evidence and upheld the sentences for the section 18 offences.

On 21 July 2017 at Canterbury Crown Court, before His Honour Judge Smith, Mr Farbar was convicted of two offences of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861 (counts 1 and 3). He also admitted one offence of failure to surrender to custody contrary to section 6 of the Bail Act 1976. He was sentenced to six years’ imprisonment concurrent on counts 1 and 3, and to a consecutive term of nine months’ imprisonment for the bail offence, making a total of six years and nine months’ imprisonment.

The offences arose from an incident on 18 March 2015 at Marine Terrace, a block of flats. Two brothers, HC and EC, were removing a washing machine from HC’s flat on the top floor. They moved a pram belonging to HC into the communal hallway to facilitate their work. When they reached the ground floor, they noticed the pram had been thrown outside onto the pavement. They returned upstairs and knocked on the door of the flat by which the pram had been left. The door was answered by Mr Farbar’s son, Erik. The brothers asked why the pram had been thrown out and told Erik to put it back. An argument developed and Erik tried to pin HC to the wall. Punches were exchanged and Erik punched HC in the face. Erik’s younger brother, Villiam, joined in, and a fight developed between the two brothers on one side and the two sons on the other.

Mr Farbar then appeared in the doorway holding a kitchen knife with a blade some nine or ten inches long. EC shouted “Careful, knife”, then suddenly shouted “Stop” and said that he was dying. He had been stabbed in the back with a large wound (count 3). HC saw that his brother had a large wound to his neck. Mr Farbar then attacked HC and attempted to stab him in the neck and throat. HC’s ear and finger were wounded (count 1). Mr Farbar was arrested and interviewed. He gave a prepared statement denying that he had a knife at any stage. He very shortly thereafter absconded to Slovakia.

On 1 December 2016 a European Arrest Warrant was issued in respect of Mr Farbar. On 8 March 2017 he was apprehended and arrested in Slovakia. On 15 May 2017 he was extradited to the United Kingdom. He was convicted and sentenced on 21 July 2017. Mr Farbar was aged 54 at the time of sentencing and was of previous good character. Prior to this incident he worked and provided for his family in Slovakia.

In passing sentence, the learned judge found that this was an innocuous incident that became unpleasant, frightening, violent and wholly unnecessary. It became spectacularly dangerous and gravely more serious due to Mr Farbar’s actions. He took a knife and used it to attack two men in conflict with his sons. No other person was armed during the incident. The judge was satisfied that Mr Farbar did not use the knife simply to gesture and threaten in the hope that it would stop the fight, as he asserted in evidence. He took the knife and used it deliberately and intentionally to inflict injury. It was simply good fortune that there was not more serious injury caused to the complainants. His conduct had elevated the offence into something altogether different. It was aggravated by the fact that there were two victims. The judge also found that Mr Farbar discussed with his family the best ways to minimise his liability, that they discussed what lies to tell and sought to blame the victims, and that he resisted being brought to justice by fleeing the jurisdiction. His personal mitigation included his ill-health, the fact that he was a family man, his good character and his age. The judge was of the view that this was a one-off incident and that Mr Farbar was not dangerous within the meaning of the Criminal Justice Act. The judge went on to say that none of the days spent by Mr Farbar in Slovakia pending extradition was to be credited against his custodial term.

The Registrar of Criminal Appeals referred the matter to the full court because she took the view that Mr Farbar was convicted and sentenced in respect of a bail offence which offended against the rule of specialty. Both counsel agreed that the conviction and sentence for the bail offence could not stand and should be quashed.

The court set out the legal framework arising from the European Council Framework Decision on the European Arrest Warrant of 13 June 2002 (2002/584/JHA). Article 8 of the Framework Decision specifies the requirements as to the content of an extradition warrant, which is required to contain the nature and legal classification of the offence or offences in respect of which extradition is sought. Article 8 is given effect by section 146 of the Extradition Act 2003. Section 146(1) provides that the section applies if a person is extradited to the United Kingdom from a category 1 territory in pursuance of a Part 3 warrant. Section 146(2) provides that the person may be dealt with in the United Kingdom for an offence committed before his extradition only if the offence is one falling within subsection (3) or the condition in subsection (4) is satisfied. Section 146(3) sets out the offences, including at paragraph (a) the offence in respect of which the person is extradited, at paragraph (b) an offence disclosed by the information provided to the category 1 territory in respect of that offence, and at paragraph (c) an extradition offence in respect of which consent to the person being dealt with is given on behalf of the territory in response to a request made by the appropriate judge.

The rule of specialty is that an extradition defendant may only be dealt with for the offence or offences for which he or she has been sought, as explained in R v Seddon [2009] EWCA Crim 483. In that case the applicant had absconded to Spain following a conviction for blackmail. He was extradited back to the United Kingdom pursuant to a European Arrest Warrant and was sentenced to eighteen months’ imprisonment for blackmail and to an additional four months’ imprisonment consecutive for an offence under the Bail Act 1976. The question for the court was whether or not the offence under the Bail Act 1976 had been disclosed by the information provided to the Spanish authorities. Hughes LJ, giving the judgment of the court, stated that section 146(3)(b) of the 2003 Act requires that the exception be limited to an offence disclosed by the information provided in respect of the extradition offence. It was quite clear to the court that the section did not extend to permit the defendant to be dealt with for the Bail Act offence which was wholly extraneous to and additional to the extradition offence of blackmail and to which there was the merest passing reference in the warrant. The court went on to give general guidance that the best course is to include in the European Arrest Warrant a request for surrender in relation to the Bail Act offence wherever there is a realistic possibility that the court should have open to it upon surrender process not only for the substantive offence but also for the bail offence. The court drew attention to the existence of the alternative procedure referred to in section 146(3)(c) of the 2003 Act, whereby it remains open to any appropriate judge to seek specific consent from the requested state to proceedings for any specific offence even after surrender. Similar exhortations appear in the judgment of the court in the recent case of R v Shepherd [2019] 2 Cr App R(S) 26.

The court examined the European Arrest Warrant in relation to Mr Farbar. The warrant stated in section (b) that the decision on which the warrant was based was a warrant of arrest dated 11 May 2015 issued at Canterbury Crown Court for failing to answer bail in respect of two offences of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. Sections (c) and (e) of the warrant went on to deal expressly with the two offences of wounding under section 18. No further reference was made to the failure to answer to bail. It was plain to the court that the reference in section (b) of the warrant was, as in Seddon, merely a passing reference to the bail offence, and it did not satisfy the test of specialty enunciated by Hughes LJ. The bail offence was not an offence for which Mr Farbar was being extradited. He was being extradited in respect of the two section 18 offences alone. The court noted that there were no other grounds upon which the bail offence could be validated. No consent to include the bail offence was sought, and there was no waiver of the specialty rule by Mr Farbar. Accordingly, the court held that the concession helpfully made by counsel on behalf of the prosecution that the conviction for failing to surrender to custody could not stand was correctly made. The court quashed the conviction on indictment for failure to surrender to bail and quashed the consecutive sentence of nine months’ imprisonment in respect of that offence.

Both counsel agreed that the judge fell into error when he refused to allow days spent in custody in Slovakia pending extradition to count against the sentence which he passed. In his sentencing remarks the judge expressly said that none of the days spent in custody in Slovakia would count towards the sentence. Under sections 240ZA and 243 of the Criminal Justice Act 2003, days spent in custody awaiting extradition are to count against sentences of imprisonment served in the United Kingdom and a judge has no power to disallow days spent in custody pending extradition. Those sections compel a sentencing judge to specify in open court the number of days that an individual has spent in custody pending extradition and to credit those days against any custodial sentence. It was agreed that 68 days were spent by Mr Farbar in custody pending extradition. Accordingly, the court directed that the concurrent sentences of six years’ imprisonment should be adjusted to take account of the 68 days spent in custody pending extradition pursuant to sections 240ZA and 243 of the Criminal Justice Act 2003, that is to say they should be credited against his custodial sentence.

Counsel for Mr Farbar urged the court to admit a medical report by Mr Naguib, a consultant psychiatrist, and submitted that the report should be taken into account when considering the appropriate sentence to be imposed. Mr Naguib interviewed Mr Farbar on 18 December 2018 through an interpreter. He concluded that Mr Farbar suffered from adjustment disorders and moderate to severe depression. Counsel submitted that, had the sentencing judge had the report before him, it would have impacted upon the length of sentence which he passed, and in any event the court should now take the report into account.

The court was unpersuaded that it should take into account this report even if it were to be admitted. Mr Farbar’s former solicitors had explained that full medical records were submitted to the sentencing judge. They said that at no time did Mr Farbar indicate that he had any mental disorders, still less indicate the same during his evidence, although he gave evidence about his physical problems which did not seem to have been so great that he could not cut down cherry trees with a chainsaw. The opportunity to put forward any further medical evidence was at the time the sentencing judge was seised of the matter. No cogent reason had been advanced as to why such a report was not obtained then. In any event, the court was wholly unpersuaded that the diagnosis which Mr Naguib had come to bore any real weight. His diagnosis appeared to be based almost wholly on anecdotal self-reports by Mr Farbar. There appeared to have been no contemporaneous evidence for his diagnosis. Further, it was troubling that much of the diagnosis in the report appeared to be based on answers given by Mr Farbar following prompting. Furthermore, Mr Naguib was not a forensic psychiatrist. The court was unpersuaded that any weight should be given to his report, which was far from compelling. For those reasons the court refused the application to adduce the further medical evidence.

In short, the court quashed the conviction and sentence for the bail offence on specialty grounds, directed that 68 days spent in custody pending extradition be credited against sentence, but upheld the concurrent sentences of six years’ imprisonment for the two section 18 offences.

Seddon [2009] EWCA Crim 483, [2009] 1 WLR 2342
R v Shepherd [2019] 2 Cr App R(S) 26